Rethinking the War on Terror

David Cole & Jules Lobel, Less Safe, Less Free: Why America Is Losing the War on Terror (The New Press, 2007) 326 pp., $26.95.

In 1956, Philip K. Dick published “Minority Report,” one of several short stories that emerged quickly as a cult classic. The most immediately relevant aspects of the short story were reworked by Steven Spielberg into a very profound and well crafted Hollywood movie in 2002. At its core, “Minority Report” deals with law enforcement from a preventive paradigm. In Dick’s futuristic work, three mutants have been found who have the power to forecast crime. In short order the traditional work of law enforcement is over. Law enforcement officers apprehend culprits before they commit their crimes. The culprits (they can no longer be called perpetrators) are charged and put away based entirely on the predictions of the mutants—they are viewed as predisposed to commit crime.

But Dick exposes in short order the manner in which this system rocks human society and pulls it away from essential values, starting with a system based on strong notions of justice and accountability. Brilliant as the mutants may be, it appears they are capable of error, and thus the system is dangerously flawed and subject to abuse by those who administer it.

Today something of Dick’s vision has been realized. The three witches of his story are now called Bush, Cheney and Chertoff. Their powers of presentiment barely register. On the other hand, they do predict terrorist attacks with great frequency and the overlay between their predictions and the electoral interests of the G.O.P. is positively uncanny. This presents a nightmare scenario far more severe that the one Philip Dick invented.

Did Philip Dick know what was coming? Did he sense the brooding presence of Dick Cheney on the horizon? The man who brought us what Ronald Suskind called the “one per cent doctrine,” which has ultimately given cover for so much abuse and injustice carried out in the name of America, and on the basis of the laughably distorted vision of the Bushies? In any event, a book has recently appeared which makes the connection between Dick the science fiction writer and Dick Cheney, the man who introduced the modern day reign of witches.

In the last four years a great number of works have appeared which attempt to come to grips with the Bush Administration’s war on terror. Many of them are polemical, and few seem to me to be of lasting value. However, David Cole and Jules Lobel have crafted in Less Safe, Less Free one of the most important critiques to be put forward so far from the civil libertarians. They offer unsparing criticism, muster their arguments with skill and artistry, and most importantly they offer constructive criticism of the current Bush Administration model. On January 20, 2009, a new president will occupy the White House. The electoral process for Bush’s successor has already begun—the earliest such election contest in history—and polls show that Americans are uncharacteristically engaged and eager to see a turnover.

The key issue in this process will certainly be the war on terror and the paradigms that drive it. But it is distressing that this debate can only occur in the context of the election cycle. The most depressing fact about the Bush Administration is not the abject failure of its counter-terrorism policies; it is the Administration’s refusal to recognize the areas where those policies have fallen short and take some steps to correct them. Unlike any of its predecessors, this Administration has withdrawn from a public discussion of its own policies.

Reading the first chapters of Less Safe, I kept thinking back to two events. The first was a conference on counterterrorism which brought together American and European experts convened in Europe early this past summer. The first speaker of substance was one of the principal architects of the Bush Administration’s counterterrorism policies. He stunned the audience by announcing that it was now completely clear that the model that the Bush Administration had composed in 2002-03 was riddled with gross mistakes and did not work. And his next comments were no less amazing. He said the Bush Administration would never seriously reassess its policy and make any course adjustments—that could only be undertaken by its successor. I looked around a room filled with senior U.S. and European officials and saw only somber, nodding heads. It was the accepted wisdom at that point.

The second incident was a conference only a few weeks ago in New York, at which a U.S. attorney and one of his best prosecutors had made a presentation. A few minutes later an anthropologist, the spouse of a victim of an act of terrorism, leveled harsh criticism at the way the prosecutors had handled a case against the perpetrators of a crime which took her husband’s life. The U.S. attorney and his associate loudly got up and stormed out of the room. I didn’t agree with the criticisms which were being leveled, but the conduct of the U.S. attorney was appalling. It reflected the arrogant attitudes of the Bush Administration; its refusal to deal with criticism or to acknowledge its own errors. This was the Bush management style in action.

All of this book makes for compelling reading. But two parts are really important and require the broadest possible audience. They are the opening and the fourth chapter. Both offer surgical but scathing assessments of the Bush Administration’s performance. The first goes to the rule of law and the tremendous tension that the tools chosen by the Bush Administration has generated with the rule of law.

The Bush Administration starts its argument with an unanalyzed thesis, namely, that civil liberties are something which must be foregone or limited in order to advance security. They dismiss the idea that civil liberties and the rule of law are a source of strength for the republic and its order, perhaps precisely because that republican value of strength is established at the expense of the autocrat—who historically was adjudged the republic’s greatest and mortal threat.

In the name of preventing another terrorist attack, the Bush administration has treated the most fundamental commitments of the rule of law as if they were optional protocols to be jettisoned in the face of the threat of terrorism. The rule of law demands, at a minimum, equality, transparency, fair procedures, individual culpability, clear rules, checks and balances, and respect for human rights. Bush’s preventive paradigm has violated each of these commitments, imposing double standards on the most vulnerable, operating in secret, denying fair trials, imposing guilt by association, intentionally obscuring clear rules, asserting unchecked unilateral power, and violating universal prohibitions on torture, disappearance, and the like. The greatest irony, however, is that while these compromises are defended as necessary to make us more secure, they have in fact made us more vulnerable to attack. They have wasted resources that could be more efficiently directed, cut off long-term options for illusory short-term gains, alienated our friends, and provided ideal recruitment fodder for our enemies. (Introduction, p. 2)

The most clear-sighted application of this criticism is found in chapter 4, entitled “The Failure of Preventive Law Enforcement.” Cole and Lobel look at the Bush Administration Justice Department’s claims of success in battling terrorism and examine the facts behind the rhetoric with some care. They quickly come to the conclusion that the widely circulated claims of success in counterterrorism are consciously inflated, indeed, dangerously so. They look into Guantánamo, the repository for the “worst of the worst.” As we now know, the “worst of the worst” were never sent to Guantánamo in the first place. It was designed as a showcase for the Administration’s “forward-leaning” policies, as something with propaganda value. The serious characters were stashed in CIA blacksites around the world. Guantánamo was populated by cooks, taxi drivers and assorted misfits, a very large part of whom never had anything to do with Islamic terrorism. “The bottom line is that the preventive paradigm as practiced at Guantánamo is an all-too-fitting symbol of the failure of the preventive paradigm,” they write (p. 107).

Of course, what leaps first to mind under the rubric of “preventive law enforcement” is the prevention of terrorist incidents. In that category there have been roughly a dozen incidents where the claim has been invoked, but in all but one of them–the case of shoe bomber Richard Reid–the plans seem nebulous, far off, or laughably incompetent (such as one man’s plot to take down the Brooklyn Bridge with a blow torch). The Bush Administration has not had anything like the successes achieved across the Atlantic in Britain, where the threats are more frequent and much more serious. British law enforcement has adopted a quite different strategy, focusing on infiltration and taking time to allow plots to develop, in the hopes of nabbing masterminds both at home and in foreign terrorism centers. And several of these British operations have been striking successes. There has been a running feud between the Americans and the Brits over approach. Several times in the last three years, U.K. law enforcement has accused their American counterparts of having prematurely sprung the trap. These criticisms seem to stand up. On the other hand it’s hard to dispute the Bush Administration in its decision to put prevention first. Which leaves only the lingering worry that political opportunism, and not prevention, is driving the timeline. That accusation has not been made out decisively, but it is also too strong at this point simply to dismiss.

In what may be the single darkest and most underexposed portion of the book, Cole and Lobel look at immigration enforcement practices. John Ashcroft promised right after 9/11 that he would introduce ethnic and racial profiling criteria as a tool for picking through immigrants to find suspect terrorists; his concerns were whipped into a xenophobic frenzy by a certain cable news channel. In short order, Ashcroft established a Special Registration system affecting 80,000 men from Arab and other predominantly Muslim countries; an additional 8,000 young men of Arab and/or Muslim background were selected for intense FBI interviews and background checks; and finally 5,000 persons were placed in preventive detention, almost all of them Arab and Muslim. These procedures were blatantly racist, pursued on the basis of ludicrous stereotypes, and they involved a massive investment of precious law enforcement resources. And what was the score at the end of the day? Out of 93,000 men caught up in this program, the total number of terrorists identified and prosecuted was zero.

The Justice Department has claimed 400 indictments and 200 convictions in “terrorism-related cases.” The Department’s own Inspector General has already taken the authors of this report to task for making grossly misleading statements. Cole and Lobel take some care in wading through the facts behind these claims and what they uncover is also disturbing: “there have been… almost no convictions on charges reflecting dangerous crimes.” (p. 111) Instead the Justice Department’s claim are constructed largely on the basis of immigration law infractions and ordinary crimes like credit card abuse. There seems little basis to connect these cases to terrorism.

The war on terror is a creation of the Bush Administration. But it’s too simple to place all the blame for its failures on that Administration. Would a Democratic administration have done things much differently? It seems clear that a Democratic administration may have committed a good number of the same abuses:

We do not want to suggest that the problem lies exclusively with this particular administration. The temptation to adopt harshly coercive preventive measures in response to terrorist attacks, especially where those measures can be targeted at the most vulnerable, is not specific to this administration or to any particular party. History has shown that other administrations—Democrat and Republican—have made similar mistakes. Thus, the problem will long outlast the Bush administration. Our hope is that a close analysis of the legality and efficacy of the preventive paradigm might lead future administrations to adopt counterterrorism policies that adhere to the rule of law and thus avoid the damaging consequences illustrated here. (p. 264)

They are right to circle back to an emphasis on the rule of law at the end, for they make a persuasive case. The problem with the Bush Administration’s paradigm is quite fundamental, namely that it departs from the most basic value on which the American republic was founded, the idea that all, including the leadership, are subject to the rule of law. In the end of the day, the war can be successfully pursued only if it defends those values.

Fifty years ago, France fought a difficult guerilla insurgency in Algeria. The experience was highly polarizing for French society, with the nation dividing along a left-right fault line in which each side adopted ideological, entrenched and morally blinded positions. In the public discourse which arose, only one writer manages an impressive measure of detachment and raised a powerful voice demanding a reconsideration of the moral premises of French society’s engagement in this war against an adversary that looked in many ways like the adversary the United States has defined for itself in the current conflict. That visionary was Albert Camus. Writing in his Chroniques Algériennes, Albert Camus put the basic social challenge in these terms:

Though it may be true that, at least in history, values, be they of a nation or of humanity as a whole, do not survive unless we fight for them, neither combat (nor force) can alone suffice to justify them. Rather it must be the other way: the fight must be justified and guided by those values. We must fight for the truth and we must take care not to kill it with the very weapons we use in its defense; it is at this doubled price that we must pay in order that our words assume once more their proper power. (Albert Camus, Essais p. 898 (Pléiade ed. 1965)).

Six years into America’s war on terror, an increasing number of Americans are understanding the conflict in very similar terms. The authors of this valuable book would be among them. Cole and Lobel have given us a great exercise in propelling those words back to their proper power. It would serve us well to listen to them with some care.

“He could be one of a million beach-bound, black-socked Florida retirees, not the man who, by some odd happenstance of life, possesses the brain of Albert Einstein — literally cut it out of the dead scientist's head.”